In her report, the Ombudsman makes three recommendations to “foster consistency and predictability in the adjudication of extraordinary ability petitions:”

Engage in formal rulemaking to “clarify the regulatory standard, and if desired, explicitly incorporate a final merits determination into the regulations;”

Provide the public with guidance on the application of a final merits determination; and

Give adjudicating officers more training and direction on the “proper application of preponderance of the evidence standard . . .”

In making these recommendations, the Ombudsman cited a variety of consequences and outcomes resulting from the USCIS’ damaging Policy Memorandum. These include: a “slight downturn in EB-1 and EB-2 filings,” some adjudicators indicating that the Policy Memorandum has not “materially change[d]” their analysis of petitions while others stating “they do not have a clear understanding of how to make a final merits determination,” and a general lack of information concerning how and what objective standards to implement during the final merits determination.

While the Ombudsman’s desire to address these issues is both welcome and admirable, this report fails to acknowledge that Kazarian does not mandate that a final merits determination be part of the EB-11, EB-12, and EB-2 adjudication process. The Kazarian decision focused on reminding the USCIS that the agency and its adjudicators cannot create new evidentiary requirements when reviewing petitions. The Court did not directly address the issue of a “final merits determination” for extraordinary ability immigrant visa petitions other than in passing as an obiter dicta, non-binding comment. Instead, the Kazarian case centered on the reach of the evidentiary requirements, as opposed to creating a new test for extraordinary ability, outstanding professor or researcher, or exceptional ability immigrant visa petitions.

As we have previously argued on this blog, Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich 1994) already articulates precisely how evidence submitted in support of these petitions should be evaluated. Specifically, Buletini held:

Once it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 C.F.R. § 204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien, despite having satisfied the criteria, does not meet the extraordinary ability standard” (emphasis added).

Moreover, once this burden has shifted, the evidence must be evaluated based on the “preponderance of the evidence” (i.e. more likely than not) standard of proof set out in the USCIS Administrative Appeals Office (AAO) precedent decision Matter of CHAWATHE, 25 I&N Dec. 369(AAO 2010).

In its Policy Memorandum, the USCIS turned the 9th Circuit’s final decision on its head by engaging in precisely what the Court sought to prevent. The Kazarian Court reprimanded the USCIS for creating and applying extra-regulatory evidentiary requirements. The USCIS’ response in implementing a “final merits determination”essentially guts the Kazarian decision and allows adjudicating officers to apply an amorphous “I’ll know it when I see it” standard that offers no guidance or hope for consistency in adjudication. For this reason, we call on the USCIS to withdraw its Policy Memorandum.

We look forward to engaging with the USCIS on the Kazarian decision and the Policy Memorandum during the agency’s upcoming I-140 Stakeholder Engagement. Given the importance of keeping the “best and the brightest” in the United States it is essential for the USCIS to correct and clarify its guidance in this area of immigration law and policy.

About The Author

Sarah J. Baker is a graduate of McGill University's Faculty of Law (Montreal, Canada) and the LL.M. program at Lewis & Clark College (Portland, OR). She prepares nonimmigrant and immigrant visa petitions and J-1 waiver applications for research scientists and foreign medical graduates. She is a contributing author to the 3rd edition of AILA's Immigration Options for Physicians

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.